Citation Nr: 0635631
Decision Date: 11/16/06 Archive Date: 11/28/06
DOCKET NO. 05-05 434 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for left shoulder
arthritis, to include as secondary to the service-connected
right shoulder disability.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant served on active duty from October 1959 to
October 1963. This case comes before the Board of Veterans'
Appeals (the Board) on appeal from a February 2004 rating
decision rendered by the Reno, Nevada Regional Office (RO) of
the Department of Veterans Affairs (VA) that, in part, denied
the appellant's claim for service connection for left
shoulder degenerative arthritis.
At a March 2006 Board hearing, the appellant submitted
additional evidence concerning his service connection claim;
this evidence consisted of copies of e-mails sent between the
appellant and a physician who answers questions posted via
the internet. The appellant also submitted a written waiver
of review of that evidence by the agency of original
jurisdiction and therefore referral to the RO of evidence
received directly by the Board is not required. 38 C.F.R.
§ 20.1304. Therefore, the case is ready for appellate
review.
FINDINGS OF FACT
1. Service medical records contain no evidence of any
complaints of, diagnosis of, or treatment for any left
shoulder disorder.
2. Left shoulder degenerative arthritis was not diagnosed
until many years after service.
3. There is no competent medical evidence of any nexus
between the appellant's current left shoulder degenerative
arthritis and his active service.
4. The appellant's service-connected right shoulder
disability has not caused or made chronically worse his left
shoulder degenerative arthritis.
CONCLUSION OF LAW
The criteria for the establishment of service connection for
degenerative arthritis, whether on a direct basis or on a
secondary basis, have not been met. 38 U.S.C.A. §§ 105,
1101, 1110, 5102, 5103, 5103A, and 5107 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. VA must notify the veteran of evidence and
information necessary to substantiate his claims and inform
him whether he or VA bears the burden of producing or
obtaining that evidence or information. 38 U.S.C.A.
§ 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
appellant was notified of the information necessary to
substantiate his left shoulder service connection claim by
correspondence dated in June 2003, and April 2005. Those
documents informed the veteran of VA's duty to assist and
what kinds of evidence the RO would help obtain.
In those letters, the RO informed the appellant about what
was needed to establish entitlement to service connection for
left shoulder degenerative arthritis. Therefore, VA has no
outstanding duty to inform the veteran that any additional
information or evidence is needed.
Even if the appellant was not provided with all of the
required notice until after the RO had adjudicated his
claims, "the appellant [was] provided the content-complying
notice to which he [was] entitled." Pelegrini v. Principi,
18 Vet. App. 112, 122 (2004). Consequently, the Board does
not find that any such late notice requires remand to the RO.
Nothing about the evidence or any response to any
notification suggests that the case must be re-adjudicated ab
initio to satisfy the requirements of 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002 & Supp. 2005) or the implementing
regulations found at 38 C.F.R. § 3.159 (2006).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c),
(d)). Here, VA obtained the appellant's service medical
records. VA medical records were obtained and associated
with the claims file. The appellant was afforded a Board
hearing. VA obtained competent medical opinions on the
questions of severity and etiology. The appellant was
informed about the kind of evidence that was required and the
kinds of assistance that VA would provide and he was supplied
with the text of 38 C.F.R. § 3.159. The appellant did not
provide any information to VA concerning available treatment
records that he wanted the RO to obtain for him that were not
obtained. The appellant was given more than one year in
which to submit evidence after the RO gave him notification
of his rights under the pertinent statute and regulations.
Therefore, there is no duty to assist or notify that is
unmet.
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued a decision in the consolidated
appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006),
which held that the notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
The appellant was substantially so advised by letter dated in
April 2005. To the extent that the April 2005 letter did not
advise the appellant as to the determinations of schedular
ratings and the assignment of effective dates, because the
veteran's claim for service connection for left shoulder
degenerative arthritis is being denied, the questions of an
appropriately assigned evaluation and the effective date for
a grant of service connection are not relevant. Proceeding
with this matter in its current procedural posture would not
therefore inure to the veteran's prejudice.
The appellant was provided with notice as to the medical
evidence needed for service connecting a disability on a
direct or secondary basis, as well as the assistance VA would
provide. Therefore, there is no duty to assist that was
unmet and the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).
All relevant facts with respect to the claim addressed in the
decision below have been properly developed. Under the
circumstances of this case, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
The Merits of the Claim
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim. The appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
The appellant testified at his March 2006 Board hearing that
he injured his left shoulder in service when he was hit on
the right side by an air silencer and thereby knocked into a
wall injuring his left shoulder. The appellant has also
submitted written statements that describe this incident.
The appellant also testified that his current left shoulder
arthritis is caused by overuse of that extremity because he
is unable to use his right upper extremity due to service-
connected disability. He submitted internet correspondence
with a physician about the causes of arthritis to support
this argument.
A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between that disability and an injury or
disease incurred in service. Watson v. Brown, 4 Vet. App.
309, 314 (1993). There must be medical evidence of a nexus
relating an in-service event, disease or injury, and any
current disability. Caluza v. Brown, 7 Vet. App. 498 (1995),
Grottveit v. Brown, 5 Vet. App. 91 (1993); 38 C.F.R. § 3.303.
To establish service connection for a disability, symptoms
during service, or within a reasonable time thereafter, must
be identifiable as manifestations of a chronic disease or
permanent effects of an injury. Further, a present
disability must exist and it must be shown that the present
disability is the same disease or injury, or the result of
disease or injury incurred in or made worse by the veteran's
military service. Rabideau v. Derwinski, 2 Vet. App. 141,
143 (1992); 38 C.F.R. § 3.303(a).
In addition, service connection may be granted for any
disease diagnosed after service when all the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d). Furthermore, service connection is
warranted for a disability that is aggravated by, proximately
due to or the result of a service-connected disease or
injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439
(1995). When service connection is thus established for a
secondary condition, the secondary condition shall be
considered a part of the original condition. Id.
Having carefully considered the claim in light of the record
and the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied.
Review of the appellant's service medical records reveals no
mention of any problems with the left shoulder. While the
appellant was diagnosed with a right shoulder osteochondroma
of the right shoulder (for which he is service-connected),
there is no evidence to suggest that the appellant ever
complained of or sought treatment for any left shoulder
condition. Nor do the service medical records contain any
diagnosis of any left shoulder disorder. Furthermore, there
is no evidence to indicate that the appellant was ever
treated for a left shoulder condition. The report of the
appellant's October 1963 service separation examination is
silent for any left shoulder disorder.
Review of the appellant's claims file reveals that in June
1972, the appellant claimed service connection for a right
shoulder injury that occurred in 1961, but made no mention of
any left shoulder injury or condition. The appellant
thereafter underwent a VA medical examination in July 1972;
again the appellant only provided information about right
shoulder problems. On physical examination, there were no
findings related to the left shoulder.
The appellant's VA outpatient treatment records reveals that
he sought treatment for evaluation of right shoulder pain in
February 2000; he did not mention any problems with the left
shoulder and he demonstrated full active range of motion of
the left shoulder on physical examination. The appellant
underwent a whole body bone imaging in May 2000, and there
were no findings pertinent to the left shoulder.
The initial mention of a left shoulder symptomatology appears
to be dated in February 2002, when the appellant complained
of left shoulder stiffness and intermittent pain. The
physician who examined the appellant noted that this
complaint represented a "possible compensatory condition for
right shoulder disability." On physical examination, the
left shoulder exhibited generalized stiffness and tenderness.
Radiographic examination of the left shoulder revealed
anatomic alignment of the joint. There were minimal
degenerative changes noted that the radiologist stated were
commensurate with the appellant's age. There were no acute
abnormalities. The radiologist rendered an impression of
minimal degenerative joint disease.
The appellant underwent a VA medical examination in December
2003; the examiner noted that the appellant's left shoulder
range of motion was restricted. The examiner stated that he
was unable to adjunct the appellant's current left shoulder
disorder to his initial in-service injury of the right
shoulder. The examiner rendered a diagnosis of degenerative
arthritis of the left shoulder commensurate with age.
The appellant underwent a VA examination by an orthopedic
specialist in December 2004; the examiner reviewed the
appellant's claims file. After examining the appellant and
reviewing the claims file, the orthopedist rendered a
diagnosis of mild degenerative osteoarthritis of the left
acromioclavicular joint. The examiner stated that the
appellant's current severe degenerative changes of the right
shoulder were a direct result of his in-service injury - as
such was noted in the presently service-connected right
shoulder disorder.
However, the examiner also stated that, in his experience, he
did not find that favoring one limb causes undue stress on
the opposite limb. This orthopedic surgeon further stated
that the changes noted in the appellant's left shoulder were
no more than would be expected in someone his age. The
examiner opined that it was not at least as likely as not
that the arthritis of the appellant's left shoulder was
secondary to overuse due to the service-connected right
shoulder disability.
The appellant has submitted copies of internet correspondence
he had with a physician; these March 2006 e-mails include
definitions of primary and secondary arthritis. The
physician indicated that, based on the information provided
by the appellant without any examination of pertinent
records, one could logically deduce that he had occupation-
related secondary osteoarthritis of the left glenohumeral
joint. The doctor also stated that a diagnosis of
occupation-related secondary osteoarthritis is rendered when
repetitive trauma to the joint is related to occupational
duties has caused the osteoarthritic changes. The doctor
also stated that it was not possible for her to specifically
diagnose the exact percentage regarding trauma (heavy
machinery operation) versus age-related changes. At no time
did this doctor state that the appellant's left shoulder
arthritis was caused by the appellant's right shoulder
disability.
In order for direct service connection to be warranted, there
must be evidence of a present disability that is attributable
to a disease or injury incurred during service. Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992). Because the totality
of the medical and nonmedical evidence of record shows that
the appellant's currently demonstrated left shoulder
degenerative arthritis cannot be said to be related to
service by way of direct incurrence or by manifestation
within the presumptive period, direct service connection for
left shoulder degenerative arthritis must be denied. The
evidence of record is not in equipoise on the question of
whether the appellant's left shoulder arthritis should be
service connected on a direct basis.
Firstly, to the extent that the appellant is shown to have a
left shoulder disorder, such evidence is reflective only of
one factor in a successful claim of service connection.
Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v.
Derwinski, 2 Vet. App. 51, 53 (1992). (Observing that
evidence of the appellant's current condition is not
generally relevant to the issue of service connection,
absent some competent linkage to military service). There
must be shown a nexus to some incident of military service.
The absence of any diagnosis of the claimed left shoulder
disorder in the service medical records between 1959 and
1963, constitutes negative evidence tending to disprove the
assertion that the appellant incurred any left shoulder
injury during his service. See Forshey v. West, 12 Vet. App.
71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d
1335, 1358 (Fed. Cir. 2002) (noting that the definition of
evidence encompasses "negative evidence" which tends to
disprove the existence of an alleged fact); see also
38 C.F.R. § 3.102 (noting that reasonable doubt exists
because of an approximate balance of positive and
"negative" evidence). The lack of any evidence of a
diagnosis of any left shoulder disorder until almost forty
years after the appellant's 1963 separation from service is
itself evidence which tends to show that no left shoulder
disorder was incurred in service.
In Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the
United States Court of Appeals for the Federal Circuit
affirmed a decision by the Court which held that evidence of
a prolonged period without medical complaint can be
considered, along with other factors concerning the
claimant's health and medical treatment during and after
military service, as evidence of whether a preexisting
condition was aggravated by military service. The trier of
fact should consider all the evidence including the
availability of medical records, the nature and course of the
disease or disability, the amount of time that elapsed since
military service, and any other relevant facts. See Dambach
v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding
that the absence of medical records during combat conditions
does not establish absence of disability). Although Maxson
is not directly on point in this case, as it deals with
aggravation in service and not service connection, it does
imply that, when appropriate, the Board may consider the
absence of evidence when engaging in a fact finding role.
In addition, the "absence" of evidence or "negative"
evidence of the claimed condition during service is supported
by affirmative evidence that tends to show that the claimed
disorder was not incurred during that time. Such affirmative
evidence consists of the July 1972 VA examination report that
indicated that the appellant complained only of right
shoulder problems, as well as the February 2000 VA treatment
note that showed no left shoulder complaints and full range
of motion of the left shoulder and the May 2000 whole body
bone imaging that resulted in no left shoulder findings.
These findings on said clinical evaluations are medical
evidence indicating that the claimed left shoulder arthritis
was not present on examination in July 1972, or in May 2000.
Thus, this is positive evidence that the appellant was not
experiencing any left shoulder disorder shortly after his
separation from service or nine years later or even 39 years
later. The Board notes that the written statements of the
appellant to the effect that his left shoulder arthritis is
causally connected to his active service are not probative as
there is no evidence in the record that he has any medical
knowledge or expertise to render such an opinion. Espiritu
v. Derwinski, 2 Vet. App. 492 (1992).
After consideration of the entire record and the relevant
law, the Board finds that the appellant's left shoulder
arthritis is not related to his active service on a direct
basis. While it is apparent that the appellant does
currently have left shoulder arthritis, the medical evidence
of record as a whole supports the proposition that there is
no etiological relationship between the origin and/or
severity of that condition and service. Therefore, the Board
finds that the preponderance of the evidence is against the
appellant's claim of direct service connection for left
shoulder arthritis. As such, the evidence is insufficient to
support a grant of direct service connection for that
disorder.
Turning to the question of secondary service connection,
based on the totality of the evidence of record, including
the reports of VA medical treatment and examination, the
Board finds that the preponderance of the evidence is against
a finding of secondary service connection for the appellant's
left shoulder degenerative arthritis. The preponderance of
the competent medical evidence is against the claim. Owens
v. Brown, 7 Vet. App. 429 (1995); see also Guerrieri v.
Brown, 4 Vet. App. 467, 470-471 (1993) (Observing that the
evaluation of medical evidence involves inquiry into, inter
alia, the medical expert's personal examination of the
patient, the physician's knowledge and skill in analyzing the
data, and the medical conclusion that the physician reaches).
As previously noted, secondary service connection may be
established when there is aggravation of a veteran's non-
service connected condition that is proximately due to or the
result of a service-connected condition. Allen v. Brown, 7
Vet. App. 439, 448 (1995). In those circumstances,
compensation is allowable for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Id. at 448. The strongest
medical evidence in support of the appellant's claim comes
from the internet doctor's inferred indication that arthritis
in a joint could be caused by two factors such as age and
heavy machinery operation. However, all of this doctor's
statements were based on a history and information given by
the appellant. See Swann v. Brown, 5 Vet. App. 229, 233
(1993).
These statements were made without the benefit of any review
of the claims file, and thus without knowledge of the
appellant's prior medical records; they are without probative
value and thus not sufficient to support the claim. On the
other hand, a radiologist has stated that the appellant's
left shoulder degenerative arthritis is commensurate with his
age and an orthopedic surgeon has stated that there is no
relation between the appellant's increased use of his left
arm due to the right shoulder disability. Furthermore, the
award of benefits may not be predicated on a resort to
speculation or remote possibility. 38 C.F.R. § 3.102; see
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
The evidence does not support the finding, in the sense that
Allen represents, of a nexus between the appellant's service-
connected right shoulder disability and any left shoulder
pathology. Likewise, the evidence does not support a finding
of any causal connection. The appellant has not sustained an
aggravation of his left shoulder arthritis or any other left
shoulder disorder that is etiologically related to, i.e.,
that it caused by, his service-connected right shoulder
disability. It is particularly important to note that the
December 2004 VA examiner was specifically asked to respond
to the question of overuse syndrome as a possible cause of
the left shoulder arthritis. His response essentially was
that the left shoulder arthritis should not be service
connected on a secondary basis. The Board concludes,
therefore, that the evidence does not support the finding, in
the sense that Allen represents, of a nexus between the left
shoulder arthritis and the service-connected right shoulder
disability.
Finally, the Board notes that the appellant has presented his
own statements regarding the development of his current left
shoulder osteoarthritis being etiologically related to his
service-connected right shoulder disability disability.
However, the record does not show that he is a medical
professional, with the training and expertise to provide
clinical findings regarding the nature and extent of his left
shoulder degenerative arthritis, or its etiologic
relationship to his service-connected right shoulder
disability. Consequently, his statements are credible
concerning his subjective complaints and his history; but
they do not constitute competent medical evidence for the
purposes of showing the existence of aggravation or a nexus
between current left shoulder arthritis and his service-
connected right shoulder disability. The same holds true for
the appellant's representative. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91
(1993).
After consideration of the entire record and the relevant law
and cases, the Board finds that the appellant's left shoulder
arthritis is not related to the service-connected right
shoulder disability in that the right shoulder disability did
not cause or aggravate the left shoulder degenerative
arthritis. While it is apparent that the appellant does
suffer from mild left shoulder arthritis, the medical
evidence of record as a whole supports the conclusion that
there is no relationship between the origin and/or severity
of that condition and the right shoulder disability for which
service connection has been granted.
Therefore, the preponderance of the evidence is against the
appellant's secondary service connection claim. The Board
must accordingly conclude that the appellant's claim for
service connection for left shoulder arthritis claimed as
secondary to his service connected right shoulder disability
must fail. Because the preponderance of the evidence is
against the appellant's claim, the benefit-of-the-doubt
doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361,
1365 (Fed. Cir.).
ORDER
Entitlement to service connection for left shoulder
degenerative arthritis, to include as due to the right
shoulder disability, is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs